Citation Nr: 1033294
Decision Date: 09/03/10 Archive Date: 09/13/10
DOCKET NO. 08-09 717 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to special monthly compensation on the basis of the
need for the regular aid and attendance of another person, or at
the housebound rate.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
Appellant and his spouse
ATTORNEY FOR THE BOARD
Thomas H. O'Shay, Counsel
INTRODUCTION
The Veteran had active service from July 1953 to June 1955, and
from April 1956 to June 1984. His many awards and decorations
include the Silver Star medal and the Combat Infantryman Badge.
This matter comes before the Board of Veterans' Appeals (Board)
on appeal of a January 2008 rating decision by the Department of
Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A.
§ 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Veteran contends that his service-connected disorders render
him so helpless as to be in need of the regular aid and
attendance of another person, or otherwise entitle him to
benefits at the housebound rate.
Factors considered to determine whether regular aid and
attendance is needed include: inability to dress or undress
himself, or to keep himself ordinarily clean and presentable;
frequent need to adjust special prosthetic or orthopedic
appliances which by reason of the particular disability requires
aid (this does not include adjustment of appliances that persons
without any such disability would be unable to adjust without
aid, such as supports, belts, lacing at the back, etc.);
inability to feed himself through loss of coordination of upper
extremities or through extreme weakness; inability to attend to
wants of nature; or incapacity, physical or mental, which
requires care or assistance on a regular basis to protect a
claimant from the hazards or dangers incident to his daily
environment. 38 C.F.R. § 3.352(a) (2009).
The report of a September 2007 Examination for Housebound Status
or Permanent Need for Regular Aid and Attendance completed by M.
Bassani, M.D. notes that the Veteran presented unaccompanied to
the examination. He was able to ambulate with the aid of a cane,
and also had a front-wheeled walker and leg braces. He was able
to walk 50 yards without the assistance of another person. Dr.
Bassani noted that the Veteran had an unlimited capacity for
leaving the house, and concluded that the Veteran does not
require daily skilled services.
In an unsigned statement received in November 2007, a VA nurse
indicated that the Veteran requires assistance with certain
activities. In a January 2008 statement, she indicated that the
Veteran had been evaluated in October and November 2007, and
found to require assistance with his activities of daily living
and independent activities of daily living. She noted that he
was recently hospitalized for a right leg fracture, and now
required aid and attendance. In a February 2008 statement, the
nurse noted that the Veteran's disorders had increased in
severity to the point where he now required assistance with all
activities of daily living, and was not able to leave his home
without assistance.
In connection with the instant claim, the Veteran attended a VA
examination in October 2008. He was accompanied by his spouse.
The Veteran was noted to use an electric cart and a cane for
mobilization. The examiner determined that he was not
permanently bedridden. The examiner indicated that the veteran
was capable of managing his benefit payments, and had the
capacity to protect himself from the hazards and dangers of daily
environment, although with some difficulty. The Veteran reported
that at home, he used a chair with rollers to sit on and
"scoot" through the house, using his cane for assistance. He
also used an electric wheelchair, but was dependent on his spouse
to answer the door, shop, do yard maintenance, cook, and clean.
He explained that he usually stayed home, leaving the house only
for doctor appointments.
Physical examination showed truncal obesity with atrophy of the
upper and lower extremities. The Veteran was in good nutrition.
He walked with a wide-stanced gait using a cane. The Veteran was
able to walk at least 10 feet without assistance, and otherwise
used an electric scooter. The examiner noted that the limitation
of motion in the lower extremities restricted activity, and
concluded, without explanation, that the Veteran was eligible for
aid and attendance and housebound status as he "is unable to
care for himself in this current environment."
The September 2007 statement by Dr. Bassani and the statements by
the VA nurse suggest that the Veteran's physical state underwent
a clear deterioration following the November 2007 right leg
fracture. It is unclear whether the deterioration was permanent,
however, given that the nurse's last statement was offered in
February 2008. The findings on VA examination appear to suggest
that the Veteran did regain a measure of mobility.
Although the October 2008 examiner concluded that the Veteran was
in need of the aid and attendance of another person, his opinion
is notably at odds with his own findings on examination. In this
regard he specifically indicated that the Veteran was mobile to
an extent, but nevertheless had to rely on his spouse for chores.
He specifically noted that the Veteran was capable of protecting
himself from the hazards and dangers of daily environment, but
nevertheless concluded that he required aid and attendance.
In light of the inconsistencies in the October 2008 examination
report, the Board finds that further VA examination of the
Veteran is required. This is particularly true given that the
last VA treatment records on file are dated in December 2007, and
show that he was still recovering from his leg fracture at that
time.
Turning to the claim for special monthly compensation at the
housebound rate, to establish entitlement under 38 U.S.C.A.§
1114(s), the evidence must show that a veteran has a single
service-connected disability evaluated as 100 percent disabling
and an additional service-connected disability, or disabilities,
evaluated as 60 percent or more disabling that is separate and
distinct from the 100 percent service-connected disability and
involving different anatomical segments or bodily systems; or,
the veteran has a single service-connected disability evaluated
as 100 percent disabling and due solely to service-connected
disability or disabilities, the veteran is permanently and
substantially confined to his or her immediate premises. 38
C.F.R. § 3.350(i) (2009).
The record shows that service connection is currently in effect
for several disabilities, one of which is rated as 70 percent
disabling, and the remainder rated as 40 percent or less
disabling. The combined disability rating for the service-
connected disorders is 100 percent. The Board notes that, prior
to September 2007, the combined rating for the Veteran's service-
connected disorders was less than 100 percent, and he was instead
assigned a total disability rating based on individual
unemployability due to service-connected disabilities (TDIU)
effective from May 1995. In September 2007, the RO granted
service connection for posttraumatic stress disorder, assigning a
70 percent rating therefor, resulting in a combined schedular
disability rating of 100 percent, effective August 30, 2006. In
the same rating action, the RO discontinued the award of TDIU,
effective the same date.
In VAOPGCPREC 6-99, VA's General Counsel determined that, because
both a 100 percent disability schedular rating and a total
disability rating awarded pursuant to 38 C.F.R. § 4.16(a) reflect
unemployability, a determination that that individual is
unemployable as a result of service-connected disability under 38
C.F.R.
§ 4.16(a) is unnecessary to adequately compensate the individual
and is superfluous. In Bradley v. Peake, 22 Vet. App. 280
(2008), however, the Court concluded that a separate award of a
TDIU predicated on a single disability may form the basis for an
award of special monthly compensation. As it applies to this
case, if the Veteran is entitled to an award of a TDIU, depending
on the disability(ies) on which it is predicated, that award may
suffice as the single service-connected disability evaluated as
100 percent disabling required for special monthly compensation
at the housebound rate. Given that the RO previously awarded the
Veteran a TDIU based on disabilities other than PTSD, the Board
finds that the RO should consider in the first instance whether a
TDIU should be granted, or perhaps reinstated.
Accordingly, the case is REMANDED for the following actions:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c) (2009).
Expedited handling is requested.)
1. After accomplishing any necessary
procedural and evidentiary development,
adjudicate the issue of entitlement to a
total disability rating based on individual
unemployability due to service-connected
disabilities.
2. Contact the Veteran and request that he
identify specific names, addresses, and
approximate dates of treatment for all
health care providers, private and VA, who
may possess additional records pertinent to
his claim for special monthly compensation
for the period since December 2007. When
the requested information and any necessary
authorizations have been received, the RO
should attempt to obtain copies of all
pertinent records which have not already
been obtained.
3. Then, schedule the Veteran for a VA
examination, preferably by an examiner who
has not previously examined the Veteran, to
specifically address whether his service-
connected disorders result in the need for
the regular aid and attendance of another
person. All necessary tests and studies
should be accomplished. The claims folders
should be made available to the examiner
for review. The examiner should also offer
an opinion as to whether it is at least as
likely as not (50 percent probability or
greater) that the Veteran's service-
connected disabilities preclude his ability
to dress or undress himself; to keep
himself ordinarily clean and presentable;
to feed himself; to frequently adjust any
special prosthetic or orthopedic
appliances; to attend to the wants of
nature, or whether the service-connected
disabilities otherwise result in the need
for assistance on a regular basis to
protect the Veteran from hazards or dangers
incident to his daily environment. The
examiner should also indicate whether the
service-connected disorders render the
Veteran permanently and substantially
confined to his immediate premises. The
rationale for any opinion offered should be
fully explained.
4. The RO should then prepare a new rating
decision and readjudicate the issue of
entitlement to special monthly compensation
based on the need for the regular aid and
attendance of another person, or at the
housebound rate. If the benefits sought on
appeal are not granted in full the RO must
issue a supplemental statement of the case,
and provide the appellant and his
representative an opportunity to respond.
After the Veteran and his representative have been given an
opportunity to respond to the supplemental statement of the case
and the period for submission of additional information or
evidence set forth in 38 U.S.C.A. § 5103(b) (West 2002) has
expired, if applicable, the case should be returned to the Board
for further appellate consideration, if otherwise in order. By
this remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the Veteran until he
is notified by the RO. The Veteran and his representative have
the right to submit additional evidence and argument on the
matters the Board has remanded to the RO. Kutscherousky v. West,
12 Vet. App. 369 (1999).
This case must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board or by the
Court for additional development or other appropriate action must
be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B,
7112 (West Supp. 2009).
_________________________________________________
JAMES L. MARCH
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board is appealable to the United States Court of Appeals for
Veterans Claims. This remand is in the nature of a preliminary
order and does not constitute a decision of the Board on the
merits of your appeal. 38 C.F.R. § 20.1100(b) (2009).